A federal appeals court just dropped a bomb on Southern lawmakers who think it is up to them to decide where trans people pee.
In G.G. v. Gloucester County School Board, a divided panel of the United States for the Fourth Circuit held that schools risk their federal funding if they do not permit trans people to use bathrooms that align with the person’s gender identity.
Though the court stopped just shy of immediately ordering a Virginia school district to abandon its anti-trans bathroom policy, the opinion is likely to have sweeping consequences for schools that engage in such discrimination within the states overseen by the Fourth Circuit. Notably, one of those states is North Carolina, the home of a sweeping anti-LGBT law preventing trans individuals from using the appropriate bathroom in many facilities.
Under federal law, “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The Department’s regulations, however, do permit “separate toilet, locker room, and shower facilities on the basis of sex.”
The Fourth Circuit’s majority opinion by Judge Henry Franklin Floyd, an Obama appointee, relies primarily on the Department of Education’s interpretation of this regulation governing segregated bathroom facilities. “When a school elects to separate or treat students differently on the basis of sex,” according to the Department, “a school generally must treat transgender students consistent with their gender identity.” A trans man is a man and a trans woman is a woman.
Judge Floyd’s opinion does contain some language that could create trouble for trans equality in the future, especially if a new president who opposes LGBT rights is elected. Though the Obama administration reads the regulation at issue in this case in a way that promotes trans rights, the regulation itself, Floyd writes, “is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.” Thus, his opinion concludes that “the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading — determining maleness or femaleness with reference exclusively to genitalia — and the Department’s interpretation — determining maleness or femaleness with reference to gender identity.”
For the time being, this conclusion that the regulation is ambiguous is good news for trans individuals seeking access to the appropriate restroom, because Supreme Court precedents also call on federal courts to defer to agencies in cases such as this one. As Floyd writes, the Supreme Court’s decision in Auer v. Robbins “requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.” Nevertheless, a new administration could rewrite the underlying regulation, if it chose to, and Floyd’s opinion does little to prevent such a rewrite from relegating trans students to a bathroom that does not correspond with their gender identity.
So long as Barack Obama — or a similarly-minded president — sits in the White House, however, Judge Floyd’s reasoning will protect trans students who are impacted by discriminatory policies governing which bathroom they may use. Floyd’s opinion was joined by Judge Andre Davis, also an Obama appointee. Judge Paul Niemeyer, a Bush I appointee, dissented from the relevant parts of Floyd’s opinion.
It is possible that the school district that lost this case may seek review from the Supreme Court, although the recent death of Justice Antonin Scalia makes it unlikely that the district will prevail. Though it is not clear whether Justice Anthony Kennedy, a conservative who typically provides the fifth vote in favor of gay rights, will show similar concern for trans rights, Kennedy’s vote currently isn’t needed to uphold Judge Floyd’s decision. If the Supreme Court splits 4–4, the lower court’s opinion remains in place.
Thus, it is likely that Floyd’s opinion will remain controlling law at least for the remainder of this year. That’s very good news for trans people in North Carolina, who just gained a very powerful precedent they can bring to bear against that state’s law. It is likely that Floyd’s opinion will also increase pressure on the Obama administration to threaten to strip federal funds from North Carolina schools unless the state abandons many of its anti-trans policies.